How do real estate brokers represent consumers in Florida? Upon initial contact, they probably don't, which is why Florida requires licensees to make following disclosure:
You should not assume that any real estate broker or sales associate represents you unless you agree to engage a real estate licensee in an authorized brokerage relationship, either as a single agent or as a transaction broker. You are advised not to disclose any information you want to be held in confidence until you make a decision on representation.
Once a consumer makes the decision to hire a broker, depending on the broker's company policy, they may conduct business with that broker under two different brokerage relationships- either as a Single Agent or as a Transaction Broker; or a third option of not engaging in a brokerage relationship at all. No matter what brokerage relationship is established, if any, Florida law still requires real estate licensees to deal honestly and fairly; disclose all known facts that materially affect the value of a residential property which are not readily observable to the buyer; and accounting for all funds entrusted to the licensee.
The "agency" relationship is a favorite discussion topic among real estate professionals, although it's not something that most consumers think about. And who can blame them! People just want to sell or buy a house. But there are differences. And, as this is likely the purchase or sale of their most valuable asset, informed consumers should know what they are.
In brokerage relationships, a broker and all of the sales associates employed by that broker are a single entity. The agency relationship starts with the employing broker, and obligates every employed sales associate to the same duties and responsibilities.
Agency Relationships
Single Agency- The highest form of representation a real estate broker can provide. This is the traditional relationship, and the one most consumers expect. It is a full fiduciary relationship, where the broker represents a consumer's best interests exclusively, even above his own, and acts as the consumer's agent. These duties are required by law:
Dealing honestly and fairly; Loyalty; Confidentiality; Obedience; Full disclosure; Accounting for all funds; Skill, care and diligence in the transaction; Presenting all offers and counteroffers in a timely manner, and Disclose all facts that materially affect the value of residential real property and are not readily observable.
Transaction Brokerage- A limited form of representation without the fiduciary responsibility to the consumer. A transaction broker does not represent consumer as their own agent, and the consumer gives up their right to undivided loyalty, obedience, full disclosure, and full confidentiality. Only these duties are required by law:
Dealing honestly and fairly; Accounting for all funds; Using skill, care, and diligence in the transaction; Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer; Presenting all offers and counteroffers in a timely manner; Limited confidentiality; Additional duties entered into by this or a separate written agreement.
Florida law recognizes that a fiduciary can not act in the best interest of both sides in a single transaction. This means a broker who represents a client as a Single Agent can not act on behalf of both the buyer and seller in the same transaction, nor can two different sales associates from the same company. The legal way to do this is for the broker to be just a Transaction Broker. Transaction Brokers can facilitate the sale and assist both parties as long as the action of the broker and associates do not act to the detriment of one or the other party. As was stated above, when agreeing to be represented by a transaction broker, a consumer is agreeing to a lesser degree of representation. Their representative can not legally act to take advantage of a negotiating position to one party's benefit if it can be considered detrimental to the other party. It's fair to both buyer and seller, it's legal, and it's an honest way to conduct business, but each party loses the ability to be aggressively represented.
This is a complicated topic, so if you want more information please feel free to call me to discuss it more thouroughly at 954-692-3456. DiSisto Realty represents our clients at the highest level allowed.
How do you want to be represented?
Reference:
Florida Brokerage Relationship Laws
|